EXHIBIT
10.1


 


THIRD
AMENDMENT TO


WAREHOUSING CREDIT AGREEMENT


 


THIS
THIRD AMENDMENT TO WAREHOUSING CREDIT AGREEMENT (the “Third Amendment”) is made and entered into as
of the 18th day of December, 2009, and is to be effective as of the 29th day of
December, 2009, by and among (i) HOME LOAN
CENTER, INC. D/B/A LENDINGTREE LOANS, a
California corporation with its principal place of business located at 163
Technology Drive, Irvine, California 92618 (the “Company”), (ii) PNC
BANK, NATIONAL ASSOCIATION, successor to NATIONAL CITY BANK, a national
banking association with an office located at 101 South Fifth Street,
Louisville, Kentucky 40202 (“PNC” or the “Bank”), and (iii) PNC BANK, NATIONAL ASSOCIATION,
successor to NATIONAL CITY BANK, a national banking association
with an office located at 101 South Fifth Street, Louisville, Kentucky 40202, its capacity as Agent for the
hereinafter defined Banks (in such capacity, the “Agent”).


 


P R E L I M I N A R Y   S T A T E
M E N T:


 


A.            Pursuant to that certain Warehousing
Credit Agreement dated as of November 26, 2007, by and among the Company,
the Bank and the Agent, as heretofore amended from time to time (the “Existing
Credit Agreement”), the Bank has heretofore established in favor of the Company
a warehousing line of credit facility in the maximum principal amount of Fifty
Million Dollars ($50,000,000.00) (the “Warehouse Line”), for the purposes set
forth therein. The Existing Credit Agreement, as amended by this Third
Amendment, is hereinafter referred to as the “Credit Agreement”.


 


B.            The Company, the Agent and the Bank are
willing to and desire to amend the Existing Credit Agreement in order to (i) extend
the stated Termination Date to April 30, 2010; provided however, no
Advances shall be requested by the Company or funded by the Agent and the Bank
from and after the close of business on March 31, 2010,  (ii) modify the
maximum principal amount of the Warehouse Line and the Total Warehouse Line
Commitment to, as applicable, (a) Fifty Million Dollars ($50,000,000.00) to
and until the close of business on January 14, 2010, (b) Forty Million
Dollars ($40,000,000.00) from  January 15,
2010 to and until the close of business on February 14, 2010,  and (c) Thirty-Five Million Dollars ($35,000,000.00)
from and after February 15, 2010, provided however, no Advances shall
be requested by the Company or funded by the Agent and the Bank from and after
the close of business on March 31, 2010, (iii) delete the Jumbo Loan
Advance Sublimit and remove Jumbo Loans as Eligible Collateral thereunder, (iv)
modify the definitions of Collateral Value and Eligible Collateral, (v) modify the interest rates applicable to
the Warehouse Line, and (vi) implement certain other modifications thereto.


 


NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth in the Existing Credit Agreement and herein,
and for other good and valuable consideration, the mutuality, receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:


 


1.             Each capitalized term used herein, unless
otherwise expressly defined herein, shall have the meaning set forth in the
Existing Credit Agreement.


 


2.             The following definitions, as contained
in Article 1 of the Existing
Credit Agreement, are hereby amended and restated in their entirety to read as
follows:


 


“Collateral Value” shall mean as of
any date:


 

















 


(a)           With respect to a Loan which constitutes Eligible
Collateral on such date, the lesser of (i) ninety-nine percent (99%) of the
face amount of the promissory note evidencing such Loan, or (ii) ninety-eight
percent (98%) of the purchase price under the Commitment to which the
applicable Loan has been assigned; and


 


Notwithstanding
anything contained in (a) to the contrary:


 


A.            The Collateral
Value of all Wet Loans shall not exceed, in the aggregate, the Wet Advance
Sublimit;


 


B.            Each Wet Loan in respect to
which the Company shall not have delivered all of the Collateral Documents to
the Agent within the number of days required by the Security Agreement, shall
have a Collateral Value of zero;


 


C.            Each Wet Loan which the
Agent determines has not been funded by the Company on the date the Advance in
respect of such Wet Loan is made by the Banks to the Company, shall have a
Collateral Value of zero;


 


D.            If the Agent
shall reasonably determine that the Collateral Value otherwise assigned to an
item of Eligible Collateral does not accurately reflect the value thereof,
then, upon notice to the Company, the Agent may mark an item of collateral to
market at any time to determine the fair market value thereof; provided,
however, in no event shall any mark to market with respect to any item of
Eligible Collateral under this subsection result in such item of Eligible
Collateral having  a Collateral Value
higher than such item would otherwise have;


 


E.             In the event that a Loan
shall have been delivered by the Agent to a purchaser under a Commitment as
provided in the Security Agreement, or in the event that such Loan was
delivered by the Agent to an Approved Investor and more than the maximum number
of days allowed by the Security Agreement shall have elapsed since the date of
such delivery and no purchase has taken place or the proceeds thereof have not
been received by the Agent, such Loan shall have a Collateral Value of zero;


 


F.             All Aged Loans
which do not constitute Eligible Collateral shall have a Collateral Value of
zero;


 


G.            All Loans which are under Trust Receipt
in accordance with the terms of the Security Agreement which are not returned
to the Agent within the required number of days specified in the Security
Agreement, shall have a Collateral Value of zero; and


 


H.            The Collateral
Value of all Loans which are under Trust Receipt in accordance with the terms
of the Security Agreement shall not exceed, in the aggregate, Two Million Five
Hundred Thousand Dollars ($2,500,000.00).


 


“Eligible Collateral” shall mean, collectively and as of any
date, [A] each Loan (i) which is a Conforming Loan, Government Loan or a
Wet Loan, (ii) which is not an Aged Loan, (iii) which constitutes
Collateral, (iv) which no default has occurred and is continuing on such
Loan, (v) which is pledged as Collateral within thirty (30) calendar days
of origination purchase or conversation, (vi) which has no principal/interest
payment past due, (vii) which has not been under Trust Receipt in
accordance with the terms of the Security Agreement for more than the maximum
number of days allowed under the Security Agreement,


 


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(viii) which has not been shipped to an Approved Investor for more than
the maximum number of days allowed by the Security Agreement and no purchase
proceeds have been received by the Agent, (ix) in respect of which the
loan-level representations, warranties and agreements contained in the Credit
Agreement and the Security Agreement are true and correct, and (x) which is
subject to a Firm Commitment or Standby Commitment; and [B] each Loan (i) that
is a Discretionary Loan (as defined in Section 9.20
hereof) without duplication, (ii) that constitutes Collateral, and (iii) that
is not subject to any lien or security interest other than that granted under
the Credit Agreement and the Security Agreement.  “Stated Income/Stated Asset Loans” and “Option
ARM Loans” are not permitted to be funded under the Warehouse Line and shall
not constitute Eligible Collateral under this Credit Agreement.


 


“Maturity Date” shall mean April 30, 2010; provided, however, the Company acknowledges and agrees that no Advances of any type shall be requested by the Company
or funded by the Agent or the Bank under this Credit Agreement from and after
the close of business on March 31, 2010.


 


“Total Warehouse Line Commitment” shall mean the total aggregate
principal amount of all Warehouse Line Commitments as determined from time to
time in accordance with the provisions of Article 2 and
Article 11 of this Credit
Agreement, and shall mean the principal amount of, as applicable, either (i) Fifty
Million Dollars ($50,000,000.00) to and until the close of business on January 14,
2010, (ii) Forty Million Dollars ($40,000,000.00) from January 15,
2010 to and until the close of business on February 14, 2010, and (iii) Thirty-Five
Million Dollars ($35,000,000.00) from and after February 15, 2010; provided, however, the Company acknowledges and
agrees that no Advances of any type shall be requested by the Company or funded
by the Agent or the Bank from and after the close of business on March 31,
2010.


 


“Warehouse Line” shall mean the line
of credit established by the Agent and the Banks in favor of the Company under Article 2 of this Credit Agreement in the maximum
principal amount, as applicable, either (i) Fifty Million Dollars
($50,000,000.00) to and until the close of business on January 14, 2010, (ii) Forty
Million Dollars ($40,000,000.00) from January 15, 2010 to and until the close
of business on February 14, 2010, and (iii) Thirty-Five Million
Dollars ($35,000,000.00) from and after February 15, 2010; provided,
however, the Company acknowledges and agrees that no Advances of any type shall
be requested by the Company or funded by the Agent or the Bank from and after
the close of business on March 31, 2010.


 


“Warehouse Notes” shall mean,
collectively, (i) that certain Amended and Restated Warehouse Promissory
Note dated as of December 29, 2009, made by the Company, payable to the order
of National City, in the face principal amount of Fifty Million Dollars
($50,000,000.00), a form of which is attached hereto as Exhibit C-1,
as the same may hereafter be amended, modified, renewed, replaced and/or
restated from time to time,  and (ii) when
executed and delivered, any such additional Warehouse Promissory Note
substantially in the form of Exhibit C-1
attached hereto, made by the Company, payable to the order of any respective
Applicant Financial Institution as shall be added as a “Bank” hereunder and in
the face principal amount of such Applicant Financial Institution’s Warehouse
Line Commitment, as the same may thereafter be amended, modified, renewed,
replaced and/or restated from time to time.


 


3.             Article 1 of the
Existing Credit Agreement is hereby further amended by deleting thereform, each
of the following defined terms:  “Jumbo
Advance”, “Jumbo Advance Sublimit”, and “Jumbo Loan”, and the Existing Credit
Agreement and each of the other Loan Documents are hereby further amended by
deleting each reference to such terms in their entirety.


 


4.             Section 2.1 of the Existing
Credit Agreement is hereby amended and restated in its entirety to read as
follows:


 


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“2.1         Warehouse Advances. Each Bank
severally agrees to lend to the Company, and the Company agrees to borrow from
each Bank, on the terms and conditions of this Credit Agreement, an aggregate
amount not exceeding such Bank’s respective Warehouse Line Commitment, and the
aggregate amount of all such Warehouse Line Commitments shall equal the Total
Warehouse Line Commitment; provided, however the Total Warehouse Line
Commitment includes a Wet Advance Sublimit. 
Subject to the terms and conditions contained herein, Warehouse Advances
may be repaid until the Termination Date; provided, however, the
Company acknowledges and agrees that no Advances of any type shall be requested
by the Company or funded by the Agent or the Bank under this Credit Agreement
from and after the close of business on March 31, 2010.  Each Bank’s
commitment to make Warehouse Advances under this Section 2.1 is herein called its “Warehouse Line
Commitment” and is set forth opposite its name in Schedule 2.1 attached to this Credit Agreement and the
aggregate maximum amount of the Warehouse Line Commitments is herein called the
“Total Warehouse Line Commitment”. The Total Warehouse Line Commitment shall be equal to, as applicable, (i)
Fifty Million Dollars ($50,000,000.00) to and until the close of business on January
14, 2010, (ii) Forty Million Dollars ($40,000,000.00) from  January 15, 2010 to and until the close of
business on February 14, 2010, or (iii) Thirty-Five Million Dollars
($35,000,000.00) from and after February 15, 2010; provided,
however, the Company acknowledges and agrees that no Advances of any type shall
be requested by the Company or funded by the Agent or the Bank under this
Credit Agreement from and after the close of business on March 31, 2010
and shall be available to the Company as Warehouse Advances, Excess
Advances and Swing Advances, subject to the terms and conditions hereof.


 


Notwithstanding the foregoing, the Banks shall not be obligated to make
a Warehouse Advance which, (a) when added to the sum of the Aggregate
Outstanding Warehouse Balance plus the Aggregate Outstanding Excess
Balance, would cause the Aggregate Outstanding Warehouse Balance plus
the Aggregate Outstanding Excess Balance to exceed the Warehouse Borrowing Base
at such time; (b) when added to the sum of the Aggregate Outstanding Warehouse
Balance plus the Aggregate Outstanding Excess Balance, would cause or
result in a violation of the financial covenants set forth in Article 5 hereof; (c) if such Warehouse Advance is
a Wet Advance, when added to the aggregate outstanding balance of all Wet
Advances would cause or result in a violation of the Wet Advance Sublimit; or (d) if
such Warehouse Advance would cause or result in the Aggregate Outstanding
Warehouse Balance plus the Aggregate Outstanding Excess Balance to
exceed the Total Warehouse Line Commitment. 
The Agent and the Banks shall not be obligated to honor any Request for
Advance if the disbursement of funds thereunder would occur after the close of
business on March 31, 2010, or if an Event of Default has occurred and is
continuing or if such disbursement would cause or result in an Event of Default
or an Unmatured Event of Default.”


 


5.             Section 2.8 of the Existing
Credit Agreement is hereby amended and restated in its entirety to read as
follows:


 


“2.8         Rates of Interest.


 


(a)           Applicable Rates of Interest.  With respect to all Advances, the Swing Note
and the Warehouse Notes shall bear interest at the following rates of interest,
as applicable:  (a) the per annum rate
equal to LIBOR plus two and one-half of one percent (2.50%) for that
portion of the aggregate outstanding principal balance of  each Warehouse Note of each Bank which is not
a Balance Funded Bank and for that portion of the aggregate outstanding principal
balance of the Balance Funded Bank’s Warehouse Note and the Swing Note which
exceeds the Average Monthly Available Deposits maintained by the Company with
the Balance Funded Bank, and (b) the per annum rate equal to two and three-quarters
of one percent (2.75%) for that portion of the aggregate outstanding principal
balance of the Warehouse Note payable to the Balance


 


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Funded Bank and the Swing Note which does not exceed
the Average Monthly Available Deposits maintained by the Company with the
Balance Funded Bank; and


 


(b)           Highest Lawful Rate.  Notwithstanding anything to the contrary
contained in this Credit Agreement or the Notes, at no time shall the interest
rates payable on the Advances, together with all fees and other amounts payable
hereunder to the extent the same constitute or are deemed to constitute
interest, exceed the maximum rate of interest allowed by applicable law (the “Highest
Lawful Rate”).  In respect of any period
during the term of this Credit Agreement, any amount paid to the Agent or any
Bank, to the extent the same shall (but for the provisions of this Section 2.8(b)) constitute or be deemed to constitute
interest, would exceed the maximum amount of interest permitted by the Highest
Lawful Rate during such period (such amount being hereinafter referred to as an
“Unqualified Amount”), then, notwithstanding anything to the contrary contained
in this Section 2.8, such Unqualified
Amount shall be applied or shall be deemed to have been applied as a prepayment
on the Advances.”


 


6.             Section 7.2(i) of the Existing
Credit Agreement is hereby amended and restated in its entirety to read as
follows:


 


“(i)          Use of Funds.  The Company shall not use any funds provided
by the Banks under this Credit Agreement, or by any Warehouse Advance, Swing
Advance or Excess Advance for any purpose other than funding or purchasing
Loans.  The Company shall not use the
proceeds of any Wet Advance for any purpose other than the purposes encompassed
by the definition of those terms in Article 1 of
this Credit Agreement.  In addition to
the foregoing, the Company shall not use any funds provided by the Banks under
this Credit Agreement or by any Warehouse Advance for the purpose of making any
Loan that would be subject to the provisions of the Home Ownership and Equity
Protection Act of 1994 or other federal or state legislation relating to “high
cost” mortgage lending.”


 


7.             The Existing Credit Agreement is hereby amended by
amending and restating Exhibits A and C-1 and
Schedule 6.1 thereof to read in their entirety as set forth on Exhibits A and C-1 and Schedule 6.1 attached to this Third Amendment and made a part hereof by this
reference.


 


8.             The Company
represents and warrants that no Event of Default has occurred to date or will
result herefrom under the Existing Credit Agreement or any other Loan Document
and that no Unmatured Event of Default currently exists or will result herefrom
under any of the Loan Documents.


 


9.             This Third Amendment may be executed in
one or more counterparts, each of which shall constitute an original and all of
the same shall constitute one and the same instrument.


 


10.           The Company further represents and
warrants that there have been no changes made to the Certificate of
Incorporation or Bylaws of the Company since December 12, 2008.


 


11.           This Third Amendment shall be effective as of the date
of delivery to the Agent of each of the following:  (i) this Third Amendment duly executed by all
parties hereto, (ii) the Amended and Restated Warehouse Promissory Note
duly executed by the Company, (iii) an amended and restated fee letter, a
letter from the Company indicating that the current authorized signer letter
has not been amended, updated disclosures, updated UCC search results and an
authorizing resolution, and (iv) all such other security documents,
opinions, instruments and certificates as may be required by the Bank or its
counsel in order to consummate the transactions contemplated herein.


 


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12.           This Third Amendment and the related
writings and the respective rights and obligations of the parties shall be
governed by, and construed and enforced in accordance with, the laws of the
Commonwealth of Kentucky.


 


13.           This Third Amendment shall be binding
upon, and shall inure to the benefit of, the Company, the Bank and the Agent
and their respective successors and assigns.


 


14.           This Third Amendment and the agreements,
instruments and other documents referred to herein, constitute the entire agreement
of the parties with respect to, and supersede all prior understandings of the
parties with respect to the subject matter hereof.  No change, modification, addition or
termination of this Third Amendment shall be enforceable unless in writing
signed by the party against whom enforcement is sought.


 


15.           Except to the extent expressly amended or
modified hereby, the Company hereby ratifies and reaffirms all of its
representations, warranties, covenants, agreements and obligations set forth in
the Existing Credit Agreement and each of the other Loan Documents.


 


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IN WITNESS WHEREOF, the
parties hereto have caused this Third Amendment to Warehousing Credit Agreement
to be duly executed as of the day and year first above written.


 


 


	
   

  	
  HOME
  LOAN CENTER, INC. D/B/A

  
	
   

  	
  LENDINGTREE
  LOANS

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Rian Furey

  
	
   

  	
   

  	
   

  
	
   

  	
  Title: 

  	
  Senior Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (the “Company”)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  PNC BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mary Jo
  Reiss

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (the “Bank”)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  PNC
  BANK, NATIONAL ASSOCIATION

  
	
   

  	
  in its
  capacity as Agent for the Banks

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mary Jo
  Reiss

  
	
   

  	
   

  	
   

  
	
   

  	
  Title: 

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (the “Agent”)

  



 


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